Madhya Pradesh High Court
Rajesh Kumar Chhatri vs The State Of Madhya Pradesh on 14 February, 2020
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C.No.6925/2020
(Rajesh Kumar Chhatri Vs. State of M.P.)
Indore, dated :14/02/2020
Shri Anil Khare, Senior Counsel with Ms. Pallavi
Khare, learned counsel for the applicant.
Shri Sandeep Mehta, learned Public Prosecutor for
the respondent/State.
Ms. Mini Ravindran, learned counsel for the objector/ complainant.
Heard. Case diary perused.
This is application under Section 438, Cr.P.C. Applicant is apprehending his arrest in connection with Crime No. 36/2020 registered at Police-Station-Mahatma Gandhi Road, District-Indore, for the offence punishable under Sections 354, 354-A, 354-D and 509 of I.P.C.
(2). As per prosecution case, the victim, who is aged about 26 years working as Assistant Commissioner Co-operative and Assistant Registrar Co-operative Society Grade-II. The applicant was posted as Deputy Commissioner Co-operative, Indore and the victim was working under him. It is alleged that applicant used to repeatedly ask the complainant to visit Maheshwar for excursion, to which she never agreed. From June 2019 the applicant started having filthy conversation to which some had double meaning and used to pass derogatory comments upon her body. He also used to make the complainant sit in his cabin for hours and have vulgar conversations with her. He also used to send messages her on whatsaap, which were suggestive, compelling her to surrender to his sexual demand, the applicant sent lewd messages which outraged the modesty of the complainant. He also threatened 2 that if his demands are not accepted then there will be dire consequence. It is also alleged that on 21.10.2019 when she went to Bhopal with the applicant for official visit where also he tried to give bad touches to her. On the basis of aforesaid, the FIR bearing Crime No.36/2020 has been registered against the applicant.
(3). Learned Senior counsel for the applicant has submitted that the applicant is working in the Co-operative Department since the year of 1998 and no allegation has ever been levied against him. It is further submitted that on 21.10.2019, the applicant was present in his office at Indore and he attended his regular office. It is further submitted that the applicant was trying to keep distance from the complainant which is apparent from the message sent by the applicant to complainant. It is further submitted that from the averments made in the complaint made by the victim to the Co-operative Minister, State of M.P. there is no allegation that the applicant had assaulted the complainant or had used any criminal force with intention to outrage her modesty, therefore, no offence under Section 354 of I.P.C. is made out. The other offence registered against the applicant are bailable in nature. It is also submitted that the applicant is ready to co-operate with the investigation. Under these circumstances, learned senior counsel for the applicant prays for grant of anticipatory bail to the applicant.
(4). On the other hand, learned Public Prosecutor for the respondent/State as well as the counsel of objector/victim opposes the application by contending that on 21.10.2019 after finishing the work at Indore, the complainant had went to Bhopal with the applicant for official work and while 3 traveling to Bhopal, he used bad touches on the person of the victim. It is further submitted that after reaching the Bhopal the applicant insisted the victim to stay with him in the hotel which she refused and asked the applicant to drop her at DB Mall where she went to her relative's. These factual statement have been categorically made by the victim in her statement under Section 161 and 164 of Cr.P.C. which is part of the investigation. It is further submitted that the victim was subjected various whatsapp messages sent by the applicant to her at various point of time and also at odd hour's, which clearly shows that the applicant compelled her to surrender his sexual demand and threatened that if his demand is not satisfied then he will initiate departmental enquiry against her. In these circumstances, sufficient material is available to constitute the offence under Section 354 of I.P.C. against the applicant. It is further submitted that applicant is absconded from the date of registration of F.I.R. and he will use his clout to influence the witnesses and the investigation, if he enlarged on bail. In these circumstances, counsels pray for rejection of the application.
(5). Having heard learned counsel for the parties and perused the documents.
(6). It is not disputed that victim was posted as Assistant Commissioner /Assistant Registrar Co-operative, Indore. From the screenshots of the whatsapp messages, it appears that the applicant sent objectionable whatsapp messages to the complainant with demand or request for sexual favour and used to ask the victim to meet with him in holidays. These messages clearly indicates the intention of the applicant towards the victim who was subordinate to him.
4Now the question is whether on the basis of these whatsaap messages an offence is made out against the applicant for the offence under Section 354 of I.P.C. which is non-bailable. Section 354 of I.P.C. reads as under:
"354. Assault or criminal force to woman with intent to outrage her modesty : Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
(7). In the Indian Penal Code, Section 349 defines "Force" while Section 350 defines "Criminal Force" and Section 351 defines "Assault". I quote these sections as under:
"349. Force:-
A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described.
First- -By his own bodily power.
Secondly- By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.
Thirdly- By inducing any animal to move, to change its motion, or to cease to move.
350 Criminal Force :-
Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.
351. Assault:-
Whoever makes any gesture, or any preparation intending or knowing. it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.5
Explanation- Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault."
(8). The submission made by learned senior counsel for the applicant that there has to be a force to find out whether there is assault within the meaning of Section 354 of IPC or not and that therefore overt act of physical conduct or beating would be necessary, does not acceptable. The English law recognizes "battery" as an exclusive term for physical assault or beating of another but the said word "battery" is not used in this provision. Section 354 does not use the word "force"
as defined in Section 349 of the IPC and, therefore, there is no need for this court to take into the consideration the said definition of force all the more so because Section 350 defines the word "criminal force" which has been utilized in Section 354 along with another word "assault" defined by Section 351 of IPC. Reading of definition of word "assault" in Section 351, It is clear that "assault" means any gesture which would cause any person to apprehend that such a gesture is for use of criminal force to that person. The explanation is clarificatory. The words which a person uses may give gestures such a meaning as may make those gestures amounting to assault. In the present case the allegation made by the complainant in the complaint sent to the Minister of Cooperative Society, State of M.P. falls within the definition of assault.
(9).In the present case the allegation made in the complaint are that the applicant used to send the whatsapp messages on the mobile phone of victim and requested for sexual favour. He used to obscene language with her while sending 6 messages on whatsapp and requested for sexual favour. He also used to send these message odd times also and was thus torturing her. The complaint clearly shows that she was apprehending loss of her career and was terrified by his activities.
(10). Thus, this court find that the victim was tormented by the applicant merely because the applicant was in a dominant position and therefore clearly fall within the perview of Section 351 defining "assault" read with its explanation. (11). So far as, the meaning of the word "Modesty". The Hon'ble Supreme Court in the Case of Tarkeshwar Sahu ..vs.. State of Bihar (Now Jharkhand) (2006) 8 SCC 560 observed as under:
"40. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.
41. "Modesty" is given as, "womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions".
42. The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman. A person slapping on the posterior of a woman in full public glare would amount to outraging her modesty for it was 10 appln1199.10 not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady.
43. The word "modesty" is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account of her sex.
44. .....
45. In State of Kerala v. Hamsa, it was stated as under:
"What the legislature had in mind when it used the word modesty in Sections 354 and 509 of the Penal Code was protection of an attribute which is peculiar to woman, as a virtue which attaches to a female on account of her sex. Modesty is the attribute of female sex and she possesses it irrespective of her age. The two offences were created not only in the interest of the woman concerned, but in the interest of public morality as well. The question of infringing the modesty of a woman would of course depend upon the customs and habits of the people. Acts which are outrageous to morality would be outrageous to modesty of women. No particular yardstick of universal application can be made for measuring the amplitude of modesty of woman, as it may vary from country to country or society 7 to society."
46. A well known author Kenny in his book Outlines of Criminal Law has dealt with the aspect of indecent assault upon a female. The relevant passage reads as under:
"In England by the Sexual Offences Act, 1956, an indecent assault upon a female (of any age) is made a misdemeanour and on a charge for indecent assault upon a child or young person under the age of sixteen it is no defence that she (or he) consented to the act of indecency."
47. In State of Punjab v. Major Singh , a three-Judge Bench of this Court considered the question - whether modesty of a female child of 7 ½ months can also be outraged. The majority view was in affirmative. Bachawat, J., on behalf of majority, opined as under:
"The offence punishable under section 354 is an assault on or use of criminal force to a woman the intention of outraging her modesty or with the knowledge of the likelihood of doing so. The Code does not define, "modesty". What then is a woman's modesty? .....The essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. The culpable intention of the accused is the crux of the matter.
(12). It is also pertinent to note that from the FIR as well as Statement recorded under Section 161 and 164 of Cr.P.C.
reflects that applicant used to bad touches on her person during traveling to Bhopal on 21.10.2019 and these allegations is sufficient to constitute offence under Section 354 of I.P.C. against the applicant (13). In view of the aforesaid discussion, this court come to conclusion that looking to the over all facts and circumstances of the case and the allegation made against the applicant, no ground is made out for grant of anticipatory bail to the applicant. Accordingly, this application is dismissed.
(S.K. Awasthi)
praveen Judge
PRAVEEN Digitally signed by PRAVEEN
KUMAR NAYAK
DN: c=IN, o=DISTRICT AND SESSION
COURT INDOR, postalCode=452005,
KUMAR st=Madhya Pradesh,
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NAYAK
ce6d05b8fd5, cn=PRAVEEN KUMAR
NAYAK
Date: 2020.02.17 11:58:51 -12'00'